Ruth Bader Ginsburg May Hand Donald Trump the Election

Supreme Court Justice Ruth Bader Ginsburg continued her attacks on Donald Trump on Tuesday, telling a CNN reporter that the presumptive Republican presidential nominee is a “faker.”

Last week, she told the New York Times, “I can’t imagine what the country would be with Donald Trump as our president.” It is highly unusual for judges, let along Supreme Court justices, to comment on elections. In this case, ironically, Justice Ginsburg may have helped ensure that Trump wins the 2016 contest.

That is because Ginsburg would almost certainly have to recuse herself from any case involving Trump’s presidential effort. According to federal law, a judge must recuse himself or herself if he or she “has a personal bias or prejudice concerning a party.” The interpretation of that statute falls to the judge himself or herself, but Ginsburg would be under severe pressure to withdraw, lest she drag the entire Court into a political crisis, damaging its reputation in the eyes of the American people.

The circumstances of Bush v. Gore in 2000 would be difficult to re-create, and the justices’ decisions in that 5-4 case were not fundamentally partisan (though many on the left claimed that they were). Yet if such a case were to arise again, and justices were to vote according to the party of the president who appointed them, Trump would enjoy the advantage of a 4-3 majority.

Ginsburg’s stance could also create problems going forward, if she remains on the Court under a Trump administration. A hypothetical President Trump would certainly demand that she recuse herself from matters of great importance to his agenda. The case for recusal would be less compelling — say, in a dispute over Trump’s proposed ban on Muslim immigration — but in the eyes of the Trump administration and its supporters, any contrary result involving Ginsburg would be forever tainted.

Liberals may be celebrating Ginsburg’s moxie today, but come November or December, they may regret her partisanship.